Locke’s Theory of Acquisition
Nozick’s goal in this section of AS&U is to, in his words, “introduce an additional bit of complexity into the structure of the entitlement theory.” To do this, he uses as a starting point Locke’s approach to justice in property acquisition—namely, that ownership of an object originates in one’s mixing of labor with that object. Nozick then proceeds to ask the standard gamut of questions calling attention to some difficulties in Locke’s theory of acquisition, like whether dumping a can of tomato juice in the ocean constitutes “mixing one’s labor” with the ocean. Essentially, the questions seek the strict boundary between what constitutes a mixing of labor sufficient for just acquisition and what does not. Under the Lockean notion of acquisition, it seems that one naïve interpretation would say that improving upon an object entails full ownership of the object. Of course, as Nozick points out, if the stock of improvable unowned objects is limited, this view is unfeasible. He uses the appropriation of a grain of sand as an example of one’s appropriation removing another’s liberty (as Hohfeld uses the word) to act on a previously unowned object, but intuitively suggests that this particular removal is not problematic. The central concern, he says, “is whether appropriation of an unowned object worsens the situation of others.”
Here, Nozick introduces a principle aimed at addressing that notion, which he terms “Locke’s proviso”: that an appropriation must leave ‘enough and as good left in common for others.’ One version of the proviso, if applied consistently, would make all past appropriations disallowed under Locke’s proviso once a single person’s situation were worsened by an appropriation. Nozick interjects that this argument actually depends on how stringently the proviso is interpreted. Further, he asks whether persons in a world where there are no more “accessible and useful unowned” objects are indeed worsened, citing numerous empirical considerations favoring private property vis-à-vis its satisfaction of the proviso. The difficulty of the argument, however, lies in answering the question “Lockean appropriation makes people no worse off than they would be how?” Nozick says answering this question lies beyond the scope of his work; he suggests that discovering the baseline could begin by estimating the general economic importance of original appropriation (say, by the percentage of income based on natural resources rather than human action). He closes with a note that these questions not only must be faced by advocates of private property; all theories of property (like collective property) must still, too, provide a theory of property rights legitimately originate.
The Proviso
Nozick starts off by assuming that any reasonable theory of justice must have some sort of proviso similar to a weak version of Locke’s. In short, if the position of others no longer at liberty to use an appropriated thing is worsened, a permanent bequeathable right to that thing can not be conferred by any valid process. The emphasis on the mode of worsening is important here, as the proviso does not encompass other modes of worsening, like worsening due to more limited opportunities to appropriate or “worsening” of one seller by another due to an appropriation leading to more market competition. Nozick also suggests that compensation of the appropriator to those whom he is worsening can satisfy the proviso.
Nozick then shifts the focus to justice in transfer, asserting that any theory of just acquisition must account for justice in transfer. Quite centrally, he posits, “If my appropriating all of a certain substance violates the Lockean proviso, then so does my appropriating some and purchasing all the rest from others who obtained it without otherwise violating the Lockean proviso.” Unlike the earlier argument in which the original appropriation violated the proviso as well as the appropriation which actually left a person worse off, it is only the combination of the original appropriation and the later transfers that is sufficient to violate the Lockean proviso.
Next, Nozick argues that one’s title to his holding includes the “historical shadow” of the proviso; namely, the title-holder may not transfer it into an agglomeration that violates the proviso, nor may he use it in a way that violates the proviso by making others worse than their baseline situation. Thus, one may not only not appropriate the only water hole in a desert and charge what he pleases, but he also may not charge what he pleases if it just so happens that circumstance destroys all other watering holes. Nozick briefly deviates for a moment to clarify that the owners’ rights are not eliminated in these cases, but simply “overridden to avoid some catastrophe” (not, however, in some ad hoc way, but internal to the given theory of property).
Delving into further exposition, Nozick asserts that someone owning the entire supply of something necessary for others to remain living does not always mean that appropriations leading up to this ownership left some people in a situation worse than the baseline. In service of this assertion, he cites the case of a medical researcher who finds an effective treatment for a disease but refuses to sell it except on his own terms; the researcher does not violate the proviso because he did not appropriate the chemical materials he used in a way that, through causing scarcity, violated the Lockean proviso. Ultimately, this demonstrates that the Lockean proviso is not an “end-state principle”; the structure of the situation that results is not relevant, but the nature of the actions taken to reach that result is. Following this, Nozick puts forward his belief that a free market system would not actually come into conflict with the Lockean proviso, making the “empirical historical” claim that people’s concern for the possibility of the proviso’s violation above other possibilities is only due to the effects of previous illegitimate state action, ending his exploration of the “complication in the entitlement theory introduced by the Lockean proviso.”
Nozick then moves on to address what he earlier labeled “the negative argument”: “the use of the claim that people don’t deserve their natural assets to rebut a possible counterargument to Rawls’ view. He has us consider the following counterargument to Rawls (“E”):
1. People deserve their natural assets.
2. If people deserve X, they deserve any Y that flows from X.
3. People’s holdings flow from their natural assets.
Therefore,
4. People deserve their holdings.
5. If people deserve something, then they ought to have it (and this overrides any presumption of equality there may be about that thing.)
Because Rawls would rebut this counterargument by denying the first premise, the connection between natural assets being morally arbitrary and the statement that distributive shares should not depend on natural assets is clearer. Here, Nozick attempts to show that the concept of “desert” needn’t be present in an argument of this sort for it to properly follow. He starts with a new counterargument, “F”:
1. If people have X, and their having X (whether or not they deserve to have it) does not violate anyone else’s (Lockean) right or entitlement to X, and Y flows from (arises out of, and so on) X by a process that does not itself violate anyone’s (Lockean) rights or entitlements, Then the person is entitled to Y.
2. People’s having the natural assets they do does not violate anyone else’s (Lockean) entitlements or rights.
The argument would then proceed to argue that people are entitled to the fruits of their labor and to what others voluntarily give or exchange with them. Nozick, quite succinctly, phrases his objection to holding equivalence between desert and entitlement:
It is not true, for example, that a person earns Y (a right to keep a painting he’s made, praise for writing a theory of Justice, and so on) only if he’s earned (or otherwise deserves) whatever he used (including natural assets) in the process of earning Y. Some of the things he uses he just may have, not illegitimately. It needn’t be that the foundations underlying desert are themselves deserved, all the way down.
Thus, since people can be described as entitled to their natural assets even if they can not be labeled as deserving of them, then an argument parallel to argument E with ‘are entitled to’ replacing ‘deserve’ throughout will be valid. Returning more explicitly to Rawls, Nozick then implies that Rawls’ argument is in a bind. Recognizing people’s entitlements to their natural assets could be necessary to avoid a strict application of the difference principle that would entail even stronger property rights than wealth-redistributive theories usually yield. Nozick cites Rawls’ counterargument that he avoids this dilemma, “because people in [Rawls'] original position rank the principle of liberty as lexicographically prior to the difference principle, applied not only to economic well-being but to health, length of life, and so on.” One of Nozick’s footnotes calls our attention to the discussion of collective assets later to further this objection.
Continuing, Nozick professes his inability to find a cogent argument to help support that variations in holdings caused by variations in natural assets ought to be eliminated or minimized. He connects the idea of the “moral arbitrariness” of natural assets to Rawls’ construction of the original position by pointing out that there must be an argument to “shape” the original position to exclude natural assets from the participants’ knowledge (i.e. there must be a justification for the veil of ignorance). Nozick argues that if a particular feature being arbitrary from a moral point of view is sufficient to fall under the veil of ignorance, then those behind the veil of ignorance should know nothing about themselves, because each of their features (like rationality, the ability to make choices, having a life span of more than three days, having a memory, ability to communicate) will be based on morally arbitrary facts (that the sperm and ovum that made them were genetically composed in a particular manner). However, Rawls’ construction of the original position has persons know some of these things.
At this point, Nozick stops to qualify his argument. He calls our attention to an ambiguity in the statement that “a fact is arbitrary from a moral point of view”: in one sense, it could mean that there is no moral reason why a fact ought to be; in another, it could mean that a fact is of no moral significance and has no moral consequences. Nozick states that rationality is not morally arbitrary in the second sense. Nonetheless, if rationality escapes exclusion for this reason, it now has a “partner in guilt”—natural assets—which must also escape exclusion for that reason. Thus, an entitlement theory similar to Rawls’ that holds that entitlements arise from or are at least dependent on such facts is called into question.
“Collective Assets”
Later in the book, Nozick aims to tackle Rawls’ seeming notion of “collective assets,” specifically referring to the idea that “everyone has some entitlement or claim on the totality of natural assets (viewed as a pool), with no one having differential claims.” He argues that a theory separating men from their talents, assets, abilities, and so on can only be adequate if one “presses very hard on the distinction between men [and those things],” noting that whether any conception of a coherent person remains when this distinction is made is an open question. Further, he states that talents and abilities are an asset to a free community, and are not part of a constant sum game, then asking whether extraction of more benefit is what justifies treating natural assets as a collective resources, leaving open the question of what justifies the extraction.
